Surveillance on the Internet: Who can the authorities put under surveillance and when?

As part of their investigations, law enforcement authorities can put people’s private Internet traffic under surveillance. In these cases, Internet providers must provide the authorities with information based on so-called edge data (also: stored data) retrospectively or even enable real-time surveillance of data traffic. However, surveillance is only permitted under certain conditions. While Init7 only provided information on IP requests in four cases in 2019, this figure had already risen to 68 in 2024. The number has risen in recent years because the hurdles for surveillance requests are becoming smaller and smaller.

The PTSS

The Swiss Postal and Telecommunications Surveillance Service (PTSS) is responsible for surveillance requests. The PTSS is part of the Federal Department of Justice and Police (FDJP). According to its own information, the PTSS ensures that surveillance is carried out in accordance with the law and the legal system and that the privacy of the population is protected.

Retrospective vs. active surveillance

A basic distinction is made between retrospective and active surveillance. Retrospective surveillance is based on stored data, the so-called edge data. Active surveillance involves real-time surveillance, which gives the authorities access to additional data.

Retrospective surveillance

Internet providers must store each person’s edge data for six months. In the case of retrospective surveillance, this edge data can be used to determine who a person was connected to via the Internet, when, for how long and from where. The technical aspects of the connection are also shown. An illustrative example can be found on the website of the Digital Society.

Active surveillance

With active surveillance, the data flow is monitored in real time. This gives law enforcement authorities access to additional information. This includes, for example, the content of incoming and outgoing messages (e-mails, chats) or conversations (Internet telephony).

When are the authorities allowed to put someone under surveillance?

The Swiss Federal Act on the Surveillance of Postal and Telecommunications Traffic authorises the surveillance of persons in the following cases:

In the context of criminal proceedings
Execution of a request for legal assistance
As part of a search for missing persons
As part of a search for persons who have been sentenced to imprisonment or against whom a custodial measure has been ordered
As part of the enforcement of the Swiss Intelligence Service Act

In the context of criminal proceedings, surveillance may only be ordered if there is a strong suspicion that a criminal offence has been committed and the seriousness of the offence justifies the surveillance. Surveillance is also only permitted for certain criminal offences. In addition, the previous investigations must have been unsuccessful or the investigations must be futile or disproportionately difficult without the surveillance.

In 2020, more than half of the surveillance cases were related to property offences, followed by offences against the Swiss Narcotics Act.

Tor network prevents surveillance

The edge data is stored and monitored on the basis of the IP address(es) used. Each device connected to the Internet uses its own IP address, which allows connections and data flows to be assigned to the respective devices and the people behind them to be identified. However, anyone who wishes to do so can conceal their IP address by using the Tor network.

The Tor network allows users to keep their IP address secret and therefore remain anonymous on the Internet. If a person uses the Tor network, the data collected by surveillance is not useful because the person’s IP address is also used by other users of the Tor network . This makes it considerably more difficult, but not impossible, for law enforcement to identify the device from which a data packet was actually sent.

There are also rumours that the law enforcement agencies themselves are snooping on the Tor network to intercept data traffic. As a result, Tor networks do not enable one hundred per cent secret data traffic. They are also associated with considerable performance losses.

PTSS requests with Init7

The number of PTSS requests has risen sharply in recent years. Init7 answered requests for so-called simple information. Simple information can refer to edge data , but not necessarily. Simple information can, for example, only contain the name and address of a specific connection.

One reason for the significant increase in information is presumably that the cantonal prosecution authorities have no longer had to pay for their enquiries to the PTSS since 2020. This is what the Federal Council has stipulated in the Ordinance on Fees and Compensation for the Surveillance of Postal and Telecommunications Traffic (Art. 3 para. 4^b). The absence of the fee encourages the law enforcement authorities to make many more enquiries than are presumably necessary.

Internet providers are not adequately compensated

This is a problem for the companies providing the information in that they must bear the de facto costs of processing the requests themselves. In 2018, the compensation that providers subject to the duty to cooperate receive from the PTSS for a simple disclosure was reduced from CHF 250 to CHF 3. This is despite the fact that the Swiss Federal Act on the Surveillance of Postal and Telecommunications Traffic (BÜPF, Art. 38) provides for appropriate compensation for providers.

Init7 has filed a lawsuit against this massive reduction in compensation. According to court documents, Init7 spends 37 minutes on a simple enquiry. Compensation of 3 Swiss francs is therefore anything but appropriate. The Federal Administrative Court ruled in favour of Init7 in a ruling on 10 June 2020, but the Swiss Federal Supreme Court subsequently overturned the decision in a ruling on 27 July 2021. Obviously, the Swiss Federal Supreme Court did not want to disavow the Federal Council, which in the view of Init7 (and in the view of the Federal Administrative Court) clearly exceeded its discretionary powers.

The judgement of the Swiss Federal Supreme Court seems to us to be a further step towards expanding surveillance in Switzerland. It is part of a trend that has been observed for years, namely the steady expansion of surveillance.

Further information

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